Campbell v. St Tammany Prsh Sch , 300 F.3d 526 ( 2000 )


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  •                     Revised November 15, 2000
    
                  IN THE UNITED STATES COURT OF APPEALS
    
                          FOR THE FIFTH CIRCUIT
    
    
    
                               No. 99-31071
                      Consolidated with No. 99-31140
    
    
    
    
    SALLY CAMPBELL;
    LOUISIANA CHRISTIAN COALITION,
                                             Plaintiffs-Appellees,
    
                                  versus
    
    ST. TAMMANY PARISH SCHOOL BOARD; EDDIE FIELDING, in his official
    capacity as a member of the St. Tammany Parish School Board; A.R.
    SMITH, also known as Smitty Smith, in his official capacity as a
    member of the St. Tammany Parish School Board; GREGORY J. SAURAGE,
    in his official capacity as a member of the St. Tammany Parish
    School Board; DONALD J. VILLERE, in his official capacity as a
    member of the St. Tammany Parish School Board; PATTI YOUNG, in her
    official capacity as a member of the St. Tammany Parish School
    Board; DANIEL G. ZECHENELLY, in his official capacity as a member
    of the St. Tammany Parish School Board; BETTY VERZWYVELT, in her
    official capacity as a member of the St. Tammany Parish School
    Board; JOHN C. LAMARQUE, in his official capacity as a member of
    the St. Tammany Parish School Board; E. ROTH ALLEN, in his official
    capacity as a member of the St. Tammany Parish School Board; JAMES
    PANKS, SR., also known as Ronnie Panks, Sr., in his official
    capacity as a member of the St. Tammany Parish School Board;
    ANTHONY TEDESCO, also known as Tony Tedesco, in his official
    capacity as a member of the St. Tammany Parish School Board; RAY A.
    ALFRED, in his official capacity as a member of the St. Tammany
    Parish School Board; MARY K. LYNCH, in her official capacity as a
    member of the St. Tammany Parish School Board; CHARLES T. HARRELL,
    in his official capacity as a member of the St. Tammany Parish
    School Board; NEAL M. HENNEGAN, in his official capacity as a
    member of the St. Tammany Parish School Board; LEONARD P.
    MONTELEONE, in his official capacity as Superintendent of the St.
    Tammany Parish School Board; WILLIAM B. BRADY, in his official
    capacity as Administrative Supervisor of the St. Tammany Parish
    School Board,
    
                                             Defendants-Appellants.
                 Appeals from the United States District Court
              For the Eastern District of Louisiana, New Orleans
                            _______________________
    
                               October 26, 2000
    
                    ORDER ON PETITION FOR PANEL REHEARING
    
             (Opinion 3/9/00, 5 Cir., _____, _____   F.3d _____ )
    
    Before POLITZ, JOHN R. GIBSON,* and HIGGINBOTHAM, Circuit Judges.
    
    PER CURIAM:
    
         We held that the First Amendment does not force the St.
    
    Tammany Parish School Board to permit partisan political activity,
    
    for-profit fund-raising, and “religious services” in a limited
    
    public forum, reserved for recreational and civic activities.    The
    
    entire court has refused to reconsider the panel’s opinion.      The
    
    panel has refused to reconsider for the reasons we will explain.
    
         St. Tammany policy permits “the use of some of the public
    
    school buildings as a limited public forum.”1     The policy permits
    
    “civic and recreational meetings and entertainment and other uses
    
    pertaining to the welfare of the community.”2      Basketball games,
    
    Scout meetings, and dance or music recitals were the overwhelming
    
    
    
    
         *
             Circuit Judge of the Eighth Circuit, sitting by designation.
         1
           St. Tammany Parish School Board, Use of School Facilities
    Policy (Nov. 13, 1997).
         2
             Id.
    
                                       2
    uses of the facilities disclosed by the record.3                 While the policy
    
    did not attempt to restrict First Amendment activity attendant to
    
    such civic or recreational uses,4 it did exclude partisan political
    
    activity,    for-profit    fund-raising,         and   “religious     services     or
    
    religious instruction.”5        Tracking the prohibitions of the rule,
    
    plaintiffs requested permission to use St. Tammany’s facilities on
    
    a specific occasion “to worship the Lord in prayer and music” and
    
    to “pray about” and “engage in religious and Bible instruction with
    
    regard   to”   various    issues.6      The      school    district      denied   the
    
    request, and the plaintiffs filed suit. The district court granted
    
    summary judgment for the plaintiffs, persuaded that the rule was
    
    too vague.     We reversed.
    
                                            I
    
         We remain convinced that St. Tammany has not created a public
    
    forum.      The   government,    when       it   chooses    to    open    a   forum,
    
    necessarily has leeway to establish the terms upon which the forum
    
    is opened.        Thus, for example, in Lehman v. City of Shaker
    
    
    
         3
           There is a complete stipulation covering the use of school
    facilities under the rules at issue here suggesting in part that
    many groups like to play basketball.
         4
           Compare Bd. of Airport Comm’rs v. Jews for Jesus, 
    482 U.S. 569
     (1987) (striking down a categorical ban on First Amendment
    activity in airports).
         5
           St. Tammany Parish School Board, Use of School Facilities
    Policy (Nov. 13, 1977).
         6
           Campbell v. St. Tammany’s Sch. Bd., 
    206 F.3d 482
    , 484 (5th
    Cir. 2000).
    
                                            3
    Heights,7     a   city   government   had   the   prerogative   to   exclude
    
    political advertising, even though it generally allowed commercial
    
    advertising on city busses.8          This even though political speech
    
    lies at the core of the First Amendment.          St. Tammany has done no
    
    more than exercise that leeway. It does not censor First Amendment
    
    activity attendant to the civic or recreational use of school
    
    facilities.       It merely forbids three activities, albeit expressive
    
    activities: partisan political activity, for-profit fund-raising,
    
    and religious services.
    
         Since a middle school is not a traditional public forum,9 the
    
    type of forum created by the St. Tammany policy is a function of
    
    the intent of the Board.      As the Supreme Court held in Cornelius v.
    
    NAACP Legal Defense and Educational Fund,10
    
         The government does not create a public forum by inaction or
         by permitting limited discourse, but only by intentionally
         opening a nontraditional forum for public discourse.
         Accordingly, the Court has looked to the policy and practice
         of the government to ascertain whether it intended to
         designate a place not traditionally open to assembly and
         debate as a public forum. The Court has also examined the
         nature of the property and its compatibility with expressive
         activity to discern the government’s intent.11
    
    
    
         7
              
    418 U.S. 298
     (1974).
         8
              418 U.S. at 300-02.
         9
           See Hazelwood Sch. Dist. v. Kuhlmeier, 
    484 U.S. 260
    , 267
    (1988) (“The public schools do not possess all of the attributes of
    streets, parks, and other traditional public forums . . . .”).
         10
              
    473 U.S. 788
     (1985).
         11
              473 U.S. at 802.
    
                                           4
    Here, the intent of St. Tammany is abundantly clear.                The policy
    
    begins by indicating that it seeks to create “a limited public
    
    forum.”12       That intent, to limit use of the forum, is reinforced by
    
    the restrictions imposed in the policy: no partisan political
    
    activity, no for-profit fund-raising, and no religious services.
    
    These evenhanded exclusions, which the record shows to have been
    
    uniformly enforced, also rebut any inference that the purpose
    
    statement is somehow pretextual, or made in bad faith.                 That St.
    
    Tammany     does      not   censor   speech   incident   to   the   civic    and
    
    recreational uses for which the forum was opened, even specifically
    
    including religious viewpoints, “does not imply that the forum
    
    thereby becomes a public forum for First Amendment purposes.”13               It
    
    merely implies that St. Tammany assiduously avoided viewpoint
    
    discrimination, while still limiting the purposes for which it
    
    opened its schools.
    
         St. Tammany has not permitted an indiscriminate range of uses.
    
    Express permission, almost always in writing, is required before
    
    using     any    of   the   school   facilities.     Many     groups   use   the
    
    facilities, but for only a handful of purposes.               Although “civic
    
    and recreational” uses might have a quite different meaning in San
    
    Francisco or Chicago, the local school board, familiar with St.
    
    Tammany Parish culture, knew what “civic and recreational” uses
    
         12
           St. Tammany Parish School Board, Use of School Facilities
    Policy (Nov. 13, 1997).
         13
              473 U.S. at 805.
    
                                             5
    meant in St. Tammany.   Their expectations regarding the activities
    
    they were permitting were not disappointed, and the uses made of
    
    school facilities in no way frustrated the board’s explicit purpose
    
    of creating a limited public forum.   For example, well over half of
    
    the uses reported in the record are affirmatively described as
    
    sports, dance or music recitals, or Scouting events.14   The record
    
    affirmatively reflects that almost seventy-five percent of all uses
    
    were for activities directly related to students, including PTA
    
    meetings, standardized tests, and graduations. Although the record
    
    shows some that civic groups, such as the Chamber of Commerce or
    
    homeowners’ associations, occasionally met in a school cafeteria,
    
    the record contains no evidence of the content of the programs,
    
    beyond occasional annotations referring to annual teas or banquets.
    
    Some plainly were relevant to students; a Lion’s Club, for example,
    
    “adopted” a school.     In sum, the record shows that St. Tammany
    
    schools were overwhelmingly used by groups for activity of interest
    
    to students or parents.   Such a limited set of uses does not create
    
    a public forum, as the Supreme Court held in Perry Education
    
    Association v. Perry Local Educators’ Association:
    
    
         14
            While groups having a religious character often used the
    schools, the record reveals that those groups almost always played
    basketball: “Knights of Columbus: Hoop Shots”; “Starlight Baptist:
    Basketball Practice.”      The Fellowship of Christian Athletes
    apparently shares this proclivity for basketball. One request for
    use read: “We need a place to practice [basketball] because Slidell
    High’s gym is being used for Fellowship of Christian Athletes.”
    This is in fact the only mention in the record of use by this
    group, despite Plaintiffs’ efforts to highlight it.
    
                                      6
         We can only conclude that the schools do allow some outside
         organizations such as the YMCA, Cub Scouts, and other civic
         and church organizations to use the facilities. This type of
         selective access does not transform government property into
         a public forum. . . . Moreover, even if we assume that by
         granting access to the Cub Scouts, YMCA’s, and parochial
         schools, the School District has created a “limited” public
         forum, the constitutional right of access would in any event
         extend only to other entities of similar character. While the
         school mail facilities thus might be a forum generally open
         for use by the Girl Scouts, the local boys’ club, and other
         organizations that engage in activities of interest and
         educational relevance to students, they would not as a
         consequence be open to an organization such as PLEA, which is
         concerned with the terms and conditions of teacher
         employment.15
    
    On the record of this case St. Tammany has not created a public
    
    forum.    It limited use at all times, and the uses it allowed are
    
    overwhelmingly typical interests and activities of students and
    
    parents – mostly recreation and sport.
    
         St. Tammany is attempting to open its school facilities.          A
    
    contrary holding would frustrate that objective and diminish,
    
    rather than increase, opportunities for freedom of speech.        Under
    
    the Supreme Court’s jurisprudence, a government entity such as a
    
    school board has the opportunity to open its facilities to activity
    
    protected by the First Amendment, without inviting political and
    
    religious activities presented in a form that would disserve its
    
    efforts   to   maintain   neutrality.   We   are   persuaded   that   the
    
    Constitution does not deprive local school boards of that choice,
    
    and courts stand ready to hear complaints of pretext or bad faith.
    
    
         15
           Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 
    460 U.S. 37
    , 47-48 (1983) (emphasis added).
    
                                       7
    Were we to hold otherwise, a school board would be put to a choice
    
    of maintaining a public forum or no forum at all.                Just as church
    
    services could not be excluded from a public forum, neither could
    
    partisan political activities or for-profit fund-raising. There is
    
    no “in between” forum in which religious services must be allowed
    
    but partisan political activity can be banned.                 The concept of a
    
    limited    public   forum    does   not       permit   such    preferences    –   a
    
    preference for religion that itself could be seen as viewpoint
    
    based.16    Nor could St. Tammany allow civic and recreational uses,
    
    but categorically bar all attendant First Amendment activity.17
    
    Thus, if St. Tammany cannot define and limit the forum it creates,
    
    it may have no alternative but to close its doors to all after-
    
    hours activity.
    
                                             II
    
         We remain convinced that St. Tammany’s policy is not viewpoint
    
    discriminatory.        By its plain language, St. Tammany’s policy
    
    permits the expression of religious viewpoints.                Immediately after
    
    the provision challenged here, barring “religious services or
    
    religious instruction on school premises,” the policy goes on to
    
    state:     “However,   the    use   of        school   facilities     by   outside
    
    organizations or groups outside school hours for the purpose of
    
    discussing    religious      material        or   material    which   contains    a
    
         16
           See Heffron v. Int’l Soc’y for Krishna Consciousness, Inc.,
    
    452 U.S. 640
    , 652-53 (1981).
         17
              See Jews for Jesus, 482 U.S. at 577.
    
                                             8
    religious     viewpoint     or   for    distributing         such        material    is
    
    permissible if it does not interfere with one of the primary uses
    
    of such facilities.”18 The policy’s express tolerance of discussion
    
    from a religious viewpoint rebuts any inference of viewpoint
    
    discrimination.
    
         St.    Tammany’s     policy   is       supported   by    rational        reasons
    
    sufficient to rebut any inference that its decision to exclude
    
    religious services was viewpoint discriminatory. Especially where,
    
    as here, the school district has affirmative evidence that its
    
    motive was not viewpoint discrimination,19 such reasons need only
    
    be rational.     They need not be compelling.            St. Tammany has not
    
    singled out religious speech for unfavorable treatment.                      What St.
    
    Tammany has done is to prohibit three forms of potential activities
    
    that might erode the neutrality of the schools.                St. Tammany bars
    
    partisan    political     activity,     lest   the   schools        be    drawn     into
    
    partisan frays or give an appearance of support for Democrats or
    
    Republicans. St. Tammany bars religious services, lest the schools
    
    appear to prefer Christians or Muslims, and religion over non-
    
    religion.20   It does not matter that the Establishment Clause does
    
         18
           St. Tammany Parish School Board, Use of School Facilities
    Policy (Nov. 13, 1997) (emphasis added).
         19
           The provisions of St. Tammany’s policy that expressly permit
    discussion of religious viewpoints provide affirmative evidence
    that the policy is not driven by viewpoint discrimination.
         20
            This parallelism raises the question of how far the
    Plaintiffs would take their reasoning. Would not St. Tammany also
    be required to allow Democrats and Republicans to hold rallies on
    
                                            9
    not require St. Tammany to exclude religious services.   The school
    
    board could rationally decide as it did in discharging the duty of
    
    evenhanded treatment. Nor does it matter that federal judges would
    
    cast a different vote were they members of the school board, or
    
    that political winds encourage such views – at least, it should not
    
    matter.
    
         This distinction, between prohibiting religious services and
    
    prohibiting expression from a religious viewpoint, is no more
    
    conceptually difficult than the distinction between prohibiting
    
    picketing and prohibiting all picketing except that which bears on
    
    a labor dispute.21   A religious service is an activity, a manner of
    
    communicating which carries a very special and distinct meaning in
    
    our culture.   While a service may express a religious viewpoint,
    
    for example, a Catholic mass featuring a prayer for the welfare of
    
    the unborn and for the reform of American abortion law, the
    
    distinction is between medium and message.22    Under St. Tammany’s
    
    
    school campuses?     See Heffron, 452 U.S. at 652-53.
         21
            See Police Dept. of Chicago v. Mosley, 
    408 U.S. 92
    , 95-97
    (1972) (noting that the “operative distinction is the message on
    the   picket   sign,”  and   explaining  past   jurisprudence  as
    “condemn[ing] . . . discrimination among different users of the
    same medium of expression”).
         22
           Widmar v. Vincent, 
    454 U.S. 263
    , 269 (1981), is not to the
    contrary.   As the Supreme Court made clear in Cornelius, the
    University in Widmar had “evidenced a clear intent to create a
    public forum.” 473 U.S. at 802. The error made by the University,
    which Widmar corrected, was the “erroneous conclusion that the
    Establishment Clause required the exclusion of groups meeting for
    religious purposes.”   473 U.S. at 803.   Here, by contrast, St.
    Tammany has evidenced, by its rules and by the manner of
    
                                      10
    policy, thus, a Catholic group could assemble on school property to
    
    “discuss” a Christian anti-abortion viewpoint and “distribute . .
    
    . material” advocating a Christian anti-abortion viewpoint.           They
    
    would only run afoul of the policy if they also chose to “conduct
    
    religious services.”23
    
         “[R]eligious     organizations”     do   not   “enjoy   rights     to
    
    communicate . . . superior to those of other organizations having
    
    social, political or ideological messages to proselytize.”24            In
    
    this case, St. Tammany decided that it did not wish to create a
    
    public forum.     Rather, it preferred a policy of not restricting
    
    free expression attending the permitted uses of school facilities,
    
    while still avoiding forms of expressive activity that it believed
    
    eroded its goal of neutrality.    No one in this case contends that
    
    St. Tammany is guilty of viewpoint discrimination because it bars
    
    partisan political activity. Insisting here that St. Tammany’s ban
    
    on religious services is unconstitutional looks less like a reach
    
    for equal treatment, and more like a reach for an affirmative
    
    preference for religious speakers over political speakers.
    
                                     III
    
         In denying rehearing we note that in the present case, the
    
    
    enforcement, a clear intent to create only a limited public forum.
    
         23
            The churches of St. Tammany Parish have little or no
    interest in using a school facility for such purposes, as a scan of
    the uses made discloses.
         24
              Heffron, 452 U.S. at 652-53.
    
                                      11
    Plaintiff    specifically    requested   accommodations   for   a    single
    
    program of religious worship and instruction. The carefully framed
    
    request for use did not propose to lecture or teach religion or
    
    religious tenets.     The Coalition’s request and the St. Tammany
    
    rules are fairly read to speak to worship services.         St. Tammany
    
    policy follows its prohibition of religious instruction with an
    
    explicit statement that “discussing religious material or material
    
    which contains a religious viewpoint” is permitted.                 Read in
    
    context, the distinction between religious instruction as part of
    
    a religious service and instructing on the matter of religion is
    
    clear.      St. Tammany’s rules need not be read to prohibit the
    
    latter.25    In any event, that question is not presented in this
    
    case.
    
                                        IV
    
         Plaintiffs draw to our attention the Supreme Court’s decision
    
    to grant certiorari in Good News Club v. Milford Central School.26
    
    This case, however, is materially different.        The Milford policy
    
    provides that “School premises shall not be used . . . for
    
    religious purposes.”27       There is a powerful argument that such a
    
    prohibition against the use of facilities for a religious purpose
    
    
         25
           See Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, 
    127 F.3d 207
    , 217 (2d Cir. 1997) (Cabranes, J., concurring in part and
    dissenting in part).
         26
              
    202 F.3d 502
     (2d Cir. 2000), cert granted 
    2000 WL 838152
    .
         27
              202 F.3d at 507.
    
                                        12
    is   facially       invalid     as   inevitably         presenting    viewpoint
    
    discrimination.      This sharply contrasts with St. Tammany Parish’s
    
    prohibition of a religious service.          The purpose of the speaker is
    
    not the inquiry in St. Tammany Parish.             Nor does it present the
    
    question of religious instruction.            In St. Tammany Parish the
    
    request was to “worship the Lord in prayer and music . . .,” as we
    
    have explained.
    
         The baseline of both the majority and the dissenting opinions
    
    in the Second Circuit’s decision in Good News Club was that a
    
    worship service could properly be excluded.              In the limited forum
    
    created by    St.    Tammany    Parish,    there   is    no   restriction   upon
    
    religious    activity,        including    teaching       from    a   religious
    
    perspective, attending use of the school facility unless it was
    
    partisan political activity, for profit activity, or a religious
    
    service.    To illustrate our point, as we have read the St. Tammany
    
    Parish rule, encouraging children to memorize Bible verses with
    
    opening and concluding prayer may be a religious activity, it may
    
    have a religious purpose, but it would not be prohibited as a
    
    religious service.       St. Tammany Parish’s rule against religious
    
    service is facially valid, and there is no evidence that its
    
    efforts to create a limited public forum or its application of its
    
    rules are a pretext for viewpoint-based discrimination.                 Fairly
    
    read in context, the rule draws a clear common sense distinction.
    
    That the meaning of a rule prohibiting a religious service can be
    
    
    
                                          13
    taxed at its margins is no fatal vice.           It is understandable and
    
    falls   far   short   of    an     unlicensed   power   to    censor.      The
    
    evenhandedness   of   St.        Tammany’s   regulations     of   its   school
    
    facilities belies any contrary suggestion.
    
                                           V
    
         Treating the Petition for Rehearing En Banc as a Petition for
    
    Panel Rehearing, the Petition for Panel Rehearing is DENIED.               The
    
    court having been polled at the request of one of the members of
    
    the court and a majority of the judges who are in regular active
    
    service not having voted in favor (FED. R. APP. P. and 5TH CIR. R.
    
    35), the Petition for Rehearing En Banc is DENIED.
    
    
    
    
                                           14
    EDITH H. JONES, Circuit Judge, with whom SMITH, BARKSDALE, EMILIO
    
    M. GARZA, and DeMOSS, Circuit Judges, dissenting from the denial of
    
    rehearing en banc:
    
    
    
               This is an equal access case.        The question is whether
    
    public authorities may exclude “religious services or religious
    
    instruction” as after-hour rental uses of school facilities, when
    
    they have permitted all other uses consistent with the “welfare of
    
    the public”, except partisan political activity28 and for-profit
    
    fund-raising.   In upholding this blatant discrimination against
    
    religious speech, a panel of our court seriously erred.          Campbell
    
    v. St. Tammany Parish Sch. Bd., 
    206 F.3d 482
     (5th Cir. 2000).           Its
    
    opinion   conflicts   with   the   Supreme   Court’s   equal   access   and
    
    viewpoint discrimination cases, decisions of five other circuit
    
    courts, and previous Fifth Circuit cases.          We dissent from the
    
    denial of en banc review.
    
               The facts are straightforward.        The St. Tammany Parish
    
    School Board allows after-hours use of its facilities for civic,
    
    social and recreational purposes,        subject to the exceptions noted
    
    above.    Over sixty buildings have been opened to hundreds of
    
    community groups.29   But Sally Campbell and the Christian Coalition
    
         28
              No issue of partisan political            use   of   the   school
    buildings is before us in this case.
         29
              These include the Fellowship of Christian Athletes; Mt.
    Zion Methodist Church Annual Tea; Wildlife and Fisheries Hunter
    safety training; Southeastern University Community Education
    
                                        15
    were, under this policy, denied permission to use the facilities to
    
    discuss educational, family and political issues, to pray about
    
    those issues, to teach the Bible with regard to those issues, and
    
    to worship God in prayer and music.
    
               As the panel noted, this case turns initially on what
    
    type of expressive forum the school board created.            When public
    
    facilities are available “for indiscriminate use by the general
    
    public”,   a   designated   public   forum   exists,   and   content-based
    
    exclusion of speakers must survive strict scrutiny review.           Perry
    
    Education Ass’n. v. Perry Local Educators’ Ass’n., 
    460 U.S. 37
    , 47,
    
    
    103 S. Ct. 948
    , 956 (1983).       If, however, because of the narrow
    
    scope of its intended use, a forum is non-public, then reasonable,
    
    viewpoint-neutral content restrictions may be imposed.           See, e.g.
    
    Perry 460 U.S. at 47, 
    103 S. Ct. 956
     (teachers’ mailboxes are a
    
    nonpublic forum); Lamb’s Chapel v. Center Moriches Union Free Sch.
    
    Dist., 
    508 U.S. 384
    , 
    113 S. Ct. 2141
     (1993) (excluding religious
    
    
    
    
    classes; Mary Dee’s Dance Studio recital; church black history
    program; Young Marines meeting; Knights of Columbus meeting; Pride-
    Rape defense program, etc. The St. Tammany School facilities have
    been used for a variety of other purposes, such as: Righteous
    Rumble Youth Conference; Brugier Homeowner’s Association Candidate
    Forum; Northshore DARE Association meeting; Willow Wood Homeowner’s
    Association meeting; Folsom Native Plant Society meeting; Northwest
    St. Tammany Civic Association meeting; Primary Colors Pre-school
    Christmas program; Relay for Life Cancer fundraiser; Pearl River
    Volunteer Fire Department banquet; First Church of God banquet;
    Drainage Board meeting; Gold Wing Riders benefit; Boy and Girl
    Scouts meetings; Young Blood International seminar; wedding
    reception; EPA meeting; Kiwanis Club breakfast; Sister-to-Sister
    conference; and Commission on Families fair.
    
                                         16
    viewpoint from access to after-hours use of school facilities is
    
    unconstitutional).
    
                The   panel’s   first   error   lies    in   its   allowing   St.
    
    Tammany’s policy to dictate what type of forum exists.            The panel
    
    observes the Board’s written limits on use of school facilities and
    
    concludes   that,   because    political    and    for-profit   fundraising
    
    activities are prohibited as well as religious instruction or
    
    worship, the Board was not solely motivated to discriminate against
    
    religious speech.     Further, the district policy restricts “more
    
    types of uses” than a policy that the Second Circuit held did not
    
    create a public forum.      Bronx Household of Faith v. Community Sch.
    
    Dist. No. 10., 127 F.3d F.3d 207, 210 (2nd Cir. 1997).          Implicitly,
    
    the panel holds that the panoply of what the school district
    
    permits is less important to the forum determination than the
    
    speech it excludes.30
    
                With due respect, the panel is looking through the wrong
    
    end of the telescope.       Such a narrow view of the conditions under
    
    which a designated public forum can arise is incorrect.                   “The
    
    Constitution forbids a state to enforce certain exclusions from a
    
    forum generally open to the public, even if it was not required to
    
    create the forum in the first place.”       Widmar v. Vincent, 
    454 U.S. 30
          For reasons that are not clear, the panel in its lengthy
    order on panel rehearing, no longer perceives this as a “minimally
    sufficient” case to maintain the school buildings’ status as a non-
    public forum. See Campbell, 206 F.3d at 487.
    
    
                                        17
    263, 267-68, 
    102 S. Ct. 269
    , 273 (1981) (emphasis added). See also
    
    Perry, 460 U.S. at 45, 103 S.Ct. at 955.         All that is required is
    
    that the forum be “generally open” to the public: “Once a forum is
    
    opened up to assembly or speaking by some groups, government may
    
    not prohibit others from assembling or speaking on the basis of
    
    what they intend to say.”      Police Department of Chicago v. Mosley,
    
    
    408 U.S. 92
    , 96, 
    92 S. Ct. 2286
    , 2290 (1972) (emphasis added).             See
    
    Hazelwood Sch. Dist. v. Kuhlmeier, 
    484 U.S. 260
    , 267, 
    108 S. Ct. 562
    , 568 (1988)(public facilities opened for indiscriminate use by
    
    the   general   public   “or   by   some   segment   of   the   public”   are
    
    designated public fora).
    
               Also pertinent for present purposes, the Supreme Court
    
    has strongly suggested that a designated public forum is created
    
    when a school district, which purports to prohibit after-hours
    
    “religious uses” of public facilities, nevertheless allows access
    
    by a wide variety of private organizations, including some that may
    
    have carried out religious purposes. See Lamb’s Chapel,508 U.S. at
    
    391, 113 S.Ct. at 2146 (1993);31 see also Bronx Household, 
    127 F.3d 31
              “The Church argued below that because under Rule 10 of
    the rules issued by the District, school property could be used for
    ‘social, civic, and recreational’ purposes, the District had opened
    its property for such a wide variety of communicative purposes that
    restrictions on communicative uses of the property were subject to
    the same constitutional limitations as restrictions in traditional
    public forums such as parks and sidewalks. Hence, its view was
    that subject matter or speaker exclusions on District property were
    required to be justified by a compelling state interest and to be
    narrowly drawn to achieve that end. . . .         The argument has
    considerable force, for the District’s property is heavily used by
    
                                         18
    207, 218 (2nd Cir. 1997)(Cabranes, J., concurring and dissenting)
    
    (noting   that      Bronx   Household    is     bound     to     non-public    forum
    
    description    of    school   district       policy     by     circuit    precedent,
    
    notwithstanding “anvil-like hint” in Lamb’s Chapel).
    
               Contrary to the panel decision, most circuit courts have
    
    recognized    that    the   government       “create[s]      a   public    forum   by
    
    allowing diverse groups to use its auditorium.”                   Concerned Women
    
    for America, Inc. v. Lafayette County, 
    883 F.2d 32
    , 34 (5th Cir.
    
    1989). That a public school rather than a university or library or
    
    ballpark is the facility in question makes no difference.                          See
    
    Grace Bible Fellowship 
    941 F.2d 45
     (1st Cir. 1991)(Breyer, J., on
    
    the panel); Gregoire v. Centennial Sch. Dist., 
    907 F.3d 1366
     (3rd
    
    Cir. 1990).      It is what the school district “does, not what it
    
    says” that determines the type of forum.                 Gregoire, 907 F.2d at
    
    1374 (citing Board of Education v. Mergens, 
    496 U.S. 226
    , 244, 
    110 S. Ct. 2336
    , 2369 (1990)).       Were it otherwise, a public body could
    
    unilaterally narrow a designated public forum so as to exclude
    
    disfavored groups, cynically circumventing the Supreme Court’s
    
    public forum jurisprudence.        This court and others have thwarted
    
    such obvious machinations. Gregoire, 907 F.2d at 1378; Hays County
    
    Guardian v. Supple, 
    969 F.2d 111
    , 117-18 (5th Cir. 1992).
    
    
    
    a wide variety of public organizations, including some that
    presented a “close question,” which the Court of Appeals resolved
    in the District’s favor, as to whether the District had in fact
    already opened its property for religious uses.” Lamb’s Chapel,
    id. at 2146. (footnote omitted) (emphasis added).
    
                                            19
                   Since the broad “welfare of the community” standard and
    
    the actual use of the facilities, rather than the district’s
    
    exclusion of three categories of speech, determine the type of
    
    forum, it should have been plain that the St. Tammany policy
    
    created a limited public forum. See, e.g., Grace Bible Fellowship,
    
    941 F.2d at 47; Gregoire, 907 F.2d at 1374, 1375.               Cases in which
    
    non-public fora were found, by contrast, were those in which the
    
    forum is not dedicated to general debate or the free exchange of
    
    ideas,    or    the   nature   of   the    property   is    “inconsistent     with
    
    expressive      activity.”      Cornelius      v.   NAACP   Legal   Defense    and
    
    Education Fund, 
    473 U.S. 788
    , 803, 
    105 S. Ct. 3439
    , 3449 (1985).32
    
    Neither of those descriptions accords with St. Tammany’s policy or
    
    practice.
    
                   Under the proper test, the district facilities were open
    
    “indifferently”33 for use by private groups.                 The content-based
    
    exclusion of religious speakers from access to the facilities is
    
    
    
    
         32
              The various cases finding that a non-public forum existed
    are clearly distinguishable from the present factual situation.
    See Lehman v. City of Shaker Heights, 
    418 U.S. 298
    , 
    94 S. Ct. 2714
    (1974) (limited access to advertising space on buses); Greer v.
    Spock, 
    424 U.S. 828
    , 
    96 S. Ct. 1211
     (1976) (military base is a non-
    public forum); Adderley v. Florida, 
    385 U.S. 39
    , 
    87 S. Ct. 242
    (1966) (jailhouse grounds not public forum); Cornelius, 
    473 U.S. 788
    , 
    105 S. Ct. 3439
     (1985) (federal workplace exists to accomplish
    the business of the employer and is thus not open to all charitable
    organizations). See also Perry,460 U.S. at 47, 103 S.Ct. at 956.
         33
              Knights of the Ku Klux Klan v. East Baton Rouge Parish
    Sch. Bd., 
    578 F.2d 1122
     (5th Cir. 1978).
    
                                              20
    censorship pure and simple.           Grace Bible Fellowship, 941 F.2d at
    
    47.   As the Supreme Court explains,
    
                If a state refused to let religious groups use
                facilities open to others, then it would
                demonstrate not neutrality but hostility
                toward religion.    “The Establishment Clause
                does not license government to treat religion
                and those who teach or practice it, simply by
                virtue of their status as such, as subversive
                of American ideals and therefore subject to
                unique disabilities.”
    
    Board of Education of Westside Community Schools Mergens, 
    496 U.S. 226
    , 248, 
    110 S. Ct. 2356
    , 2371 (1990) (citing McDaniel v. Paty, 
    435 U.S. 618
    , 641, 
    98 S. Ct. 1322
    , 1335 (1978) (Brennan, J., concurring
    
    in judgment)) (emphasis added).34
    
                The panel’s second error was to construe the board’s
    
    policy,    if   it     legitimately     created      a   non-public   forum,   as
    
    maintaining     both     a   reasonable      and    viewpoint-neutral    content
    
    restriction against religious worship and instruction.                     In a
    
    nonpublic forum, “content discrimination may be permissible if it
    
    preserves the purposes of that limited forum, [but] viewpoint
    
    discrimination . . . is presumed impermissible when directed
    
    against    speech      otherwise      within       the   forum’s   limitations.”
    
    
    
    
          34
              See also Widmar, 454 U.S. at 269, 102 S.Ct. at 274 (if
    the government creates a “generally open forum,” it cannot
    discriminate against groups “engag[ing] in religious worship and
    discussion [since] [t]hese are forms of speech and association
    protected by the First Amendment”).     So much for the panel’s
    attempted distinction between religious meetings and “religious
    instruction and worship.”
    
                                            21
    Rosenberger v. Rector & Visitors of the Univ. of Virginia, 
    515 U.S. 819
    , 829-30, 
    115 S. Ct. 2510
    , 2517 (1995).
    
                 The   panel   opinion   says    nothing     about    the   policy’s
    
    reasonableness, which must be judged in light of the forum’s
    
    general    “welfare   of   the   public”     standard.      The    omission   is
    
    particularly curious given the Supreme Court’s criticism in Lamb’s
    
    Chapel that the lower court there had failed to examine the
    
    reasonableness of a restriction against using school buildings
    
    after-hours for “religious purposes.”             One would suppose that
    
    without a finding of its reasonableness vis à vis the scope of the
    
    forum, a content restriction is doomed.           Lamb’s Chapel,        508 U.S.
    
    at 393 n. 6, 113 S.Ct. at 2147 n. 6.
    
                 The policy is, in any event, unreasonable.              Perhaps it
    
    was motivated by fear that public schools would become the font of
    
    off-hours sectarian activity, but there is no record evidence of
    
    this.     If, on the other hand, the fears relate to excessive use of
    
    the facilities, the district could review its custodial regulations
    
    to assure that all off-hours costs were recovered.               But there is no
    
    evidence of these fears, either.            Compare Fairfax Cov. Church v.
    
    Fairfax County School Board, 
    17 F.3d 703
     (4th Cir. 1994). Finally,
    
    no legitimate Establishment Clause violation occurs from allowing
    
    religious groups equal access to after-hours rentals.35
    
         35
              “It does not violate the Establishment Clause for a
    public [school] to grant access to its facilities on a religion-
    neutral basis to a wide spectrum of ... groups, including groups
    that use meeting rooms for sectarian activities, accompanied by
    
                                         22
                   The crux of the issue is this:              when measured against the
    
    “welfare of the public standard,” how can the prohibition of
    
    religious worship or instruction be anything other than viewpoint
    
    discrimination?        Even the Second Circuit understood that religious
    
    worship services are “the ultimate in speech from a religious
    
    viewpoint,”        Bronx Household, 127 F.3d at 215.                  To describe the
    
    exclusion as covering “religious activity” somehow outside the pale
    
    of the community’s welfare makes no sense.                   Such a distinction not
    
    only invites active censorship by the St. Tammany School Board -
    
    e.g., does a prayer or Christian exhortation at the Fellowship of
    
    Christian Athletes meeting make it a religious worship service?36
    
    – but it flatly discriminates against those who practice, rather
    
    than simply profess or talk about, religion. Both of these effects
    
    have        been   condemned        by    the    Supreme    Court’s     equal   access
    
    jurisprudence.
    
                   Most recently, the Court ruled that when a university
    
    funds student publications generally, and does not exclude religion
    
    as a subject matter, it is unconstitutional for the school to
    
    discriminate        based      on        some   speaker’s     religious    viewpoint.
    
    
    
    some devotional exercise.” Rosenberger, 515 U.S. at 842, 115 S.Ct.
    at 2523. Since the facilities are used after-hours, there is no
    threat of a captive audience; since the facilities are used by a
    variety of groups, there is no threat of the schools endorsing
    religion: “[B]y creating a forum the [school] does not thereby
    endorse or promote any of the particular ideas aired there.”
    Widmar, 454 U.S. at 271 n.10, 102 S.Ct. at 275 n.10.
           36
                   See n.2 supra.
    
                                                    23
    Rosenberger, supra. Allowing the Fellowship of Christian Athletes,
    
    the Knights of Columbus and other religious groups to use the St.
    
    Tammany facilities demonstrates, along with the board’s broad
    
    written    access     policy,   that   religious      subject    matter   is    not
    
    excluded from after-hours rentals.              Rosenberger made plain that
    
    “the guarantee of neutrality is respected, not offended, when the
    
    government, following neutral criteria and even-handed policies,
    
    extends benefits to recipients whose ideologies and viewpoints,
    
    including religious ones, are broad and diverse.” Rosenberger, 515
    
    U.S. at 839, 115 S.Ct. at 2521; see also 515 U.S. at 846 n. 5, 115
    
    S.Ct.     at   2525   (O’Connor,   J.,    concurring),     (emphasizing        that
    
    exclusion of religious groups would evince hostility to religion),
    
    n.   5.        Rosenberger   condemned        the   imposition    of   viewpoint
    
    distinctions by the university that would inevitably lead to
    
    “governmental censorship, to ensure that all student writings and
    
    publications meet some baseline standard of secular orthodoxy.”
    
    515 U.S. at 844, 115 S.Ct. at 2524.                 So it is in this case.
    
    Rosenberger then repeated the description of this danger from one
    
    of the Court’s first equal access cases:
    
         [T]he dissent fails to establish that the distinction
         [between ‘religious’ speech and speech ‘about’ religion]
         has intelligible content. There is no indication when
         “singing hymns, reading scripture, and teaching biblical
         principals” cease to be “singing, teaching, and reading”-
         -all apparently forms of “speech,” despite their
         religious   subject   matter--and    become   unprotected
         “worship.” . . . [E]ven if the distinction drew an
         arguably principled line, it is highly doubtful it would
         lie within the judicial competence to administer. Merely
    
                                             24
         to draw the distinction would require the university--and
         ultimately the courts--to inquire into the significance
         of words and practices to different religious faiths, and
         in varying circumstances by the same faith.          Such
         inquiries would tend inevitably to entangle the State
         with religion in a manner forbidden by our cases.
    
    
    Rosenberger, 515 U.S. at 845, 115 S.Ct. at 2524 (citing Widmar, 454
    
    U.S. at 269-70, n.6, 102 S.Ct. at 274, n.6)(citations omitted).37
    
    
    
               To paraphrase one court, the panel opinion would allow
    
    atheists to put on a program denouncing religion or anti-Semites to
    
    sponsor a rant against Judaism, but it would not allow religious
    
    believers of any stripe to convene or instruct the faithful in this
    
    forum.    See Church on the Rock, 84 F.3d at 1279; see also Grace
    
    
         37
              See also Church on the Rock v. City of Albuquerque, 
    84 F.3d 1273
    , 1278 (10th Cir. 1996) (overturning a prohibition against
    using an otherwise publicly available senior citizens’ center for
    religious worship). The court held that:
    
         ... even if the City had not previously opened the Senior
         Centers to presentations on religious subjects, its
         policy would still amount to viewpoint discrimination.
         Any prohibition of sectarian instruction where other
         instruction is permitted is inherently non-neutral with
         respect to viewpoint. Instruction becomes “sectarian”
         when it manifests a preference for a set of religious
         beliefs.   Because there is no non-religious sectarian
         instruction (and indeed the concept is a contradiction in
         terms), a restriction prohibiting sectarian instruction
         intrinsically favors secularism at the expense of
         religion. Therefore, we conclude that the City’s policy
         constitutes viewpoint determination.
    
    See also Good News/Good Sports Club v. School District of the City
    of Ladue, 
    28 F.3d 1501
    , 1507 (8th Cir. 1994).
    
    
    
                                    25
    Bible Fellowship, 941 F.2d at 47.    This is the very essence of
    
    viewpoint discrimination.
    
              It is unfortunate for the citizens of the Fifth Circuit
    
    that this court has seen fit to retreat from equal treatment of
    
    religious speech and to deviate from fifteen years of consistent
    
    Supreme Court jurisprudence on the subject. The St. Tammany school
    
    board was not required to open its facilities for the “welfare of
    
    the public.”   Once it did so, however, it could not arbitrarily
    
    discriminate against religious speakers.     We dissent from the
    
    denial of rehearing en banc.
    
    
    
    
                                   26
    

Document Info

DocketNumber: 99-31071

Citation Numbers: 300 F.3d 526

Filed Date: 11/16/2000

Precedential Status: Precedential

Modified Date: 2/19/2016

Authorities (23)

Adderley v. Florida , 385 U.S. 39 ( 1966 )

Police Dept. of Chicago v. Mosley , 408 U.S. 92 ( 1972 )

Lehman v. Shaker Heights , 418 U.S. 298 ( 1974 )

Greer v. Spock , 424 U.S. 828 ( 1976 )

McDaniel v. Paty , 435 U.S. 618 ( 1978 )

Heffron v. International Soc. for Krishna Consciousness, ... , 452 U.S. 640 ( 1981 )

Widmar v. Vincent , 454 U.S. 263 ( 1981 )

Perry Ed. Assn. v. Perry Local Educators' Assn. , 460 U.S. 37 ( 1983 )

Cornelius v. NAACP Legal Defense & Ed. Fund, Inc. , 473 U.S. 788 ( 1985 )

Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, ... , 482 U.S. 569 ( 1987 )

Hazelwood School Dist. v. Kuhlmeier , 484 U.S. 260 ( 1988 )

Board of Ed. of Westside Community Schools (Dist. 66) v. ... , 496 U.S. 226 ( 1990 )

Lamb's Chapel v. Center Moriches Union Free School Dist. , 508 U.S. 384 ( 1993 )

Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S. 819 ( 1995 )

Knights of the Ku Klux Klan, Realm of Louisiana v. East ... , 578 F.2d 1122 ( 1978 )

Concerned Women for America, Inc. And Jolene Cox v. ... , 883 F.2d 32 ( 1989 )

Grace Bible Fellowship, Inc. v. Maine School Administrative ... , 941 F.2d 45 ( 1991 )

Hays County Guardian v. Jerome K. Supple , 969 F.2d 111 ( 1992 )

Fairfax Covenant Church v. The Fairfax County School Board, ... , 17 F.3d 703 ( 1994 )

the-good-newsgood-sports-club-an-unincorporated-association-jordan , 28 F.3d 1501 ( 1994 )

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